Three opinions are in this week's "short wins" - on restitution calculation, competency in a bank robbery case, and the Fair Sentencing Act.

And, in federal public defender budget news, the New York Times had an editorial last week calling for more sensible funding of the government services required by the Constitution. Here's the best bit:

The right to counsel is already badly battered in state courts, largely because most states grossly underfinance the representation of impoverished defendants. Indigent defense in federal criminal cases has served as an admirable contrast because of the high quality and availability of federal defenders. Now this system is in peril. Federal defenders will not be able to take the time to visit clients in prison or search for facts that could raise doubts about clients' guilt.

Budget cuts hit every part of the federal government, as we know. Which is why the Department of Justice last week asked to hire an additional 100 lawyers next year over what they had this year.

As the Legal Times reports it,

The U.S. Department of Justice's budget request for 2014 seeks to add dozens of attorney positions, boosting efforts to combat cybersecurity, prosecute financial and mortgage fraud and combat international piracy of intellectual property.

For those of you keeping score at home, the federal public defender is laying off people - including at least one Federal Public Defender himself - furloughing others, and otherwise scrambling to deal with the 5% budget cut that went into effect in February. Meanwhile, DOJ is staffing up.

Apparently a change in tide does not affect all boats equally.

Should DOJ worry that they won't find enough harried, underpaid public defenders to be on the other side of the the cases that their fancy new prosecutors will be bringing?

And, with that, to the victories!

1.United States v. Fareri, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 105 months in prison, and ordered to pay restitution. Remand was required for the district court to correct the specific amounts owed to appellant's victims, as the list of payments due to each victim exceeded the amount identified in the court's oral pronouncement and written judgment. Though the district court's total restitution amount was binding, remand was required to reapportion the payments between victims. [Note - Matt Kaiser was trial counsel in this case.]

2. United States v. Grigsby, Sixth Circuit: The district court issued an order allowing the government to medicate appellant, a pretrial detainee diagnosed with paranoid schizophrenia, in an effort to restore appellant's mental competency so that he could be prosecuted on bank robbery charges. Because appellant's liberty interest in avoiding involuntary medication outweighed the government's interest in prosecution, the order was reversed and the case remanded for further proceedings.

3. United States v. Hinds, Eleventh Circuit: Appellant was convicted of conspiring to possess with intent to distribute crack cocaine and sentenced to a lengthy prison term. He was later resentenced to a reduced term of 120 months. The acts giving rise to the conviction occurred before the passage of the Fair Sentencing Act ("FSA"), though appellant was re-sentenced after the Act. The FSA raised the drug quantities required to trigger mandatory minimum sentences for certain crack offenses. Because appellant was re-sentenced after the FSA was enacted, his sentence was vacated and the case remanded for resentencing.

It's a good week in the federal circuits for folks accused of a crime.

Instead of the all-too-common diet of sentencing remands, there are some nice wins on our rights against unreasonable searches and seizures and against uncounseled statements to law enforcement. Well done appellate counsel!

And, what week would be complete without an opinion on restitution in child pornography cases.

To the Victories!

1. United States v. Black, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm after his motion to suppress the firearm was denied. Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search. For these reasons, the district court's ruling on the motion was reversed and appellant's conviction and sentence were vacated.

2. United States v. Gamble, Sixth Circuit: Appellants were convicted of two unrelated child pornography offenses and ordered to pay over $1 million in restitution to "Vicky," one of the people depicted in the images. Because the courts did not require a showing of proximate cause between Vicky's losses and the appellants' offenses, remand for that analysis was required. Furthermore, on remand, the lower courts must reconsider the extent to which appellants must pay restitution where they share responsibility for Vicky's injuries with hundreds of other child pornography viewers.

3. United States v. Ramirez, First Circuit: Appellant pled guilty to conspiracy to distribute and distribution of crack cocaine. He was sentenced to 13 years in prison. Because the record was unclear as to whether the court applied an enhancement for knowingly or intentionally using a minor person when committing the offenses, remand was required to resolve this question.

4. United States v. Hunter, Seventh Circuit: The district court properly granted appellant's motion to suppress statements he made to police after asking for his attorney. Because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.

5. United States v. Bell, D.C. Circuit: Appellant was convicted of conspiring to possess and distribute PCP. He argued that his lawyer was ineffective because the lawyer didn't tell him that he could have received a lower sentence under the "safety valve" provision of the Guidelines. Appellant also said his lawyer was ineffective because the lawyer didn't request a continuance at the sentencing hearing when it became apparent that appellant didn't about the safety valve. Because the record suggested a serious possibility that the lawyer was ineffective and that this ineffectiveness prejudiced appellant, remand was proper to resolve this uncertainty.

6. United States v. Moore, Fourth Circuit: Appellant was convicted of carjacking, using a firearm in the carjacking, and conspiracy. Because the district court erred in denying appellant's motion for a new trial, which was based in part on newly discovered evidence that a picture of a potential suspect in the underlying offenses was mislabeled, his conviction was vacated and the case remanded for a new trial.

It's a scattershot collection of sentencing remands in this week's short wins.

Also, Happy Belated President's Day everyone, or, as OPM says, happy Washington's Birthday:

This holiday is designated as "Washington's Birthday" in section 6103(a) of title 5 of the United States Code, which is the law that specifies holidays for Federal employees. Though other institutions such as state and local governments and private businesses may use other names, it is our policy to always refer to holidays by the names designated in the law.

Used car dealers with their "President's Day Sales" may differ though.

To the victories!

1. United States v. Battle, Tenth Circuit: Appellant was convicted of conspiracy to possess with an intent to distribute 50 grams or more of crack. He was sentenced to 360 months in prison, and was later resentenced to 324 months after he filed a motion to reduce his sentence based on the retroactive amendment of the crack cocaine guidelines. The 324-month sentence was based in part on the court's finding that appellant was responsible for more than 3.4 kilograms of crack. Because the record did not support attributing this amount to appellant, the court reversed and remanded for resentencing.

2. United States v. Epps, D.C. Circuit: Appellant was convicted of various drug offenses under a Rule 11(c)(1)(C) plea agreement. He was sentenced to 188 months in prison followed by five years of supervised release. The court had jurisdiction to hear the appeal notwithstanding appellant's release from prison and the start of his supervised release. The appeal was not moot because appellant's term of supervised release may be impacted by the outcome of the appeal. Finally, appellant was entitled to a reduction of his sentence under the revised guidelines. For these reasons, the case was reversed and remanded.

3. United States v. May, Ninth Circuit: Appellants pled guilty to receipt of stolen mail and mail theft. The court's loss calculation included expenses the U.S. Postal Service ("USPS") incurred to avert future thefts. The court improperly ordered restitution for USPS' expenses because the mail theft of which the defendants were convicted occurred after, and could not have caused, USPS' delivery procedure change. As a result, the portion of the restitution order awarding restitution for USPS' expenses was vacated.

4. United States v. Patrick, Seventh Circuit: Appellant pled guilty to sex trafficking and was sentenced to 360 months in prison, to be served consecutive to a 20-year state court sentence appellant was serving. Because the court failed to discuss appellant's cooperation with authorities, appellant's sentence was vacated and the case remanded for further proceedings.

5. United States v. Capers, et al., Eleventh Circuit: Bishop Capers, Leon Frederick, and Larry Little were convicted of conspiracy to possess with intent to distribute cocaine and crack cocaine. The court ruled that the Fair Sentencing Act, which reduced the guidelines ranges for the offenses at issue, did not apply to Mr. Capers and Mr. Little's sentencing guidelines calculations because their offenses were committed before the Act was passed. This was error. Consequently, Mr. Capers and Mr. Little's sentences were vacated and the case remanded for resentencing.

It's been a big week for resentencings - especially in the Sixth and Seventh Circuits.

The DC Circuit came in with an important decision on the BOP's Inmate Financial Responsibility Program. The Ninth Circuit weighed in on supervised release conditions in a sex case.

Though, really, six opinions from our federal circuits last week and all of them involve a resentencing. It's a sad kind of winning.

To the victories?

1. United States v. Godoy, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 60 months in prison, and ordered to enroll in the Inmate Financial Responsibility Program. Because he could not be ordered to enroll in the program, his sentence was modified to reflect that enrollment was voluntary.

2. United States v. Preston, Ninth Circuit: Appellant was convicted of abusive sexual contact and sentenced to 50 months in prison and lifetime supervised release, subject to several conditions: (1) participating in plethysmograph testing; (2) prohibiting the possession/viewing of "any other material" of a sexual nature; and (3) prohibiting contact with or being "in the company of" children under 18. The court did not make specific factual findings before ordering the testing in condition (1). On remand, if the court again orders testing, factual findings must be made. Because condition (2)'s reference to "any other material" was too broad, remand for clarification on this point was warranted. Finally, remand on condition (3) was appropriate to add a mens rea requirement and for the court to explain its reasons for imposing the condition, given that it implicates significant liberty interests, or, if it cannot, to narrow the condition appropriately.

3. United States v. Deen, Sixth Circuit: Appellant was convicted of distributing crack and sentenced to 66 months in prison and four years of supervised release. After violating supervised release, he was sentenced to two years in prison to "give the Bureau of Prisons another chance to do some in-depth rehabilitation." Because the Sentencing Reform Act prohibits a court from imposing a sentence to enable a person to complete a treatment program or otherwise promote rehabilitation, the court erred in imposing a sentence based on appellant's rehabilitative needs. His sentence was vacated and the case remanded for resentencing.

4. United States v. Love, Seventh Circuit: Appellant was convicted of distributing and conspiring to distribute crack. Because he committed these offenses before the effective date of the Fair Sentencing Act, but was sentenced after, he was entitled to resentencing under the Act's less stringent crack provisions. Resentencing was also proper because the court incorrectly calculated the guidelines sentence. For these reasons, his sentence was vacated and the case remanded for resentencing.

5. United States v. Wren, Seventh Circuit: Appellants were convicted of crack offenses. They both had original Guideline ranges above the statutory floor and received sentences below that floor because of the substantial assistance they provided to the prosecutor. After they were sentenced, the Sentencing Commission made changes to the Guideline ranges for crack that would have permitted a reduction in their sentences. Because the court erred in ruling that appellants were prevented from receiving lower sentences under Guideline § 5G1.1, the case was remanded.

6. United States v. Macias-Farias, Sixth Circuit: Appellant was convicted of drug trafficking and sentenced to 320 months in prison. Because the court failed to make the findings necessary to enhance appellant's sentence for obstruction of justice under Guideline § 3C1.1, remand for resentencing was required.

Gregory Fair was an internet entrepreneur. Of sorts.

Mr. Fair's Criminal Copyright Enterprise

He sold pirated copies of outdated Adobe software on Ebay. His customers could buy this outdated software, then, with an update code Mr. Fair was also able to provide, they could pay Adobe to upgrade their software to the most current version.

Mr. Fair's customers would then pay, for example, $325 and a little bit of legwork for Adobe software that would cost more than $700 on the open market.

A deal like that sells itself, and over the course of six years his total sales came in around $1.4 million.

All good things must come to an end.

The Postal Service, after hearing complaints from Adobe, launched a sting. Mr. Fair was charged with a criminal copyright offense under 18 U.S.C. § 2319. He pled guilty.

Restitution Arguments at the Sentencing Hearing

Though the plea agreement contained a lot of concessions, it did not contain an agreement about any restitution amount.

Before sentencing, the government provided a spreadsheet of the amount of revenue that Mr. Fair made selling software as a part of his software enterprise. His total sales were $767,465.99. The government proposed that this would be an adequate measure of Adobe's loss for restitution purposes.

Mr. Fair disagreed. He argued that

(1) restitution under the MVRA must take the form of "actual loss" to the victim; (2) "actual loss cannot be equated to 'intended loss' or to gain by the defendant"; and (3) the government had offered "no proof . . . of any actual loss by [the victim,] Adobe Systems."

Moreover, in a move that may be genius or chutzpah, he argued that "his piracy might in fact have benefitted Adobe Systems by increasing consumers' awareness and use of its products."

A temperate man, he did not request payment from Adobe for his work as a part of the sentencing proceeding.

The district court agreed with the government. The district court reasoned that

"[i]t's undisputed that [Fair]'s revenue from the sales of pirated Adobe products was at least $767,000," and that "if anyone held the right to collect revenue from the sale of these products, it was Adobe [Systems]," and so it followed that "since the sales did occur and revenue was generated, and the right to the revenue was held by Adobe [Systems] and not by [Fair], that Adobe [Systems] has the right to be restored to the revenue that it lost [in] its right to collect on actual sales that were made."

Mr. Fair appealed.

Mr. Fair Goes To The D.C. Circuit

The D.C. Circuit, in United States v. Fair, reversed the restitution award.

About the district court's reasoning, the D.C. Circuit started by saying that just about no federal appellate court thinks the district court's approach is supported by the law.

The circuit courts of appeals are in general agreement that the defendant's gain is not an appropriate measure of the victim's actual loss in M[andatory Victim Restitution Act] calculations. See Zangari, 677 F.3d at 92-93 (2d Cir.); Arledge, 553 F.3d at 899 (5th Cir.); United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008); Chalupnik, 514 F.3d at 754 (8th Cir.); United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007); cf. United States v. Kuo, 620 F.3d 1158, 1164-65 (9th Cir. 2010); United States v. Harvey, 532 F.3d 326, 341 (4th Cir. 2008); United States v. Badaracco, 954 F.2d 928, 942-43 (3d Cir. 1992).

So the amount that Mr. Fair made on the sales of copyright-violating software isn't the right measure of what Adobe lost. Fair enough. What is?

Sometimes, in a criminal copyright case, the copyright violator puts things into the market that completely block the legitimate seller from selling at all.

For example, if I sell bootlegged copies of The Green Bag ("an entertaining journal of law") for a mere $35 a subscription per year, it would prevent The Green Bag from being sold for many consumers.

In a case like that, the D.C. Circuit said, the restitution owed to The Green Bag would be not the cost of its lost sales - so not $40 per subscription I sold - but rather The Green Bag's profits per subscription. Or, as the D.C. Circuit put it,

the actual loss to the displaced (authentic) seller is the profit lost from the displaced sales -- not the retail value of the goods that would have been sold.

Here, though, the government put on no such evidence of Adobe's lost profits

the government offered no evidence of either the number of sales that Adobe Systems likely lost as a result of Fair's scheme or the profit that Adobe Systems would have made on any such diverted sales. The record contains only a spreadsheet tallying Fair's eBay sales and unsubstantiated, generalized assertions of government counsel regarding Adobe Systems' lost sales. . . . There thus was no evidentiary basis on which the district court could find that had Fair's customers not purchased pirated Adobe software from him at a greatly reduced price, all or any portion of them would have purchased full-priced versions from Adobe Systems.

Moreover, to the extent that the government thought that it could simply use the guidelines infringement loss number as a restitution amount, the court of appeals slapped it down

To the extent the government defends the use of gross proceeds as "consistent with the calculation of loss under the Sentencing Guidelines," Appellee's Br. at 15, it ignores the different approaches in the Guidelines and the M[andatory Victims Restitution Act]. Essentially, the government blurs the line between the "infringement amount" calculated under Sentencing Guidelines § 2B5.3 in criminal copyright cases, which is derived by multiplying the retail value of the infringed or infringing items by the quantity of infringing items, and the restitution amount calculated under the MVRA, which must reflect the actual, provable loss suffered by the victim.

But that's not all, gentle readers.

No Second Bite on Remand

The government, perhaps seeing which way the wind was blowing, asked the D.C. Circuit to limit the damage. If we lose, the government asked, please at least remand for a new hearing on restitution.

The government wanted another bite at the apple.

The D.C. Circuit was having none of it.

No special circumstances are present that would warrant reopening the record on restitution in Fair's case. The government's burden to prove actual loss under the MVRA was well-established before sentencing. See also Tr. Oct. 22, 2009 at 23 (government counsel stating, "[w]e welcome the burden to prove restitution."). The government was allowed to present evidence . . . . Indeed, whether the government had offered evidence demonstrating actual loss was the central issue addressed during the parties' restitution discussion at the sentencing hearing.

Because the government already had a full and fair opportunity to prove that restitution was appropriate, and it failed to do so, the D.C. Circuit vacated the restitution award and denied the government another chance to meet its burden.

Fair enough.

It's a good week for reversals in fraud cases.

The Second Circuit sent two fraud cases back for resentencing, and vacated a conviction in its entirety! And they're cool issues -- for example, for the "mass marketing" enhancement under the fraud guidelines to apply, the government has to show not just that mass marketing happened, but that mass marketing happened to victims. A number of convictions were also vacated in a criminal tax prosecution, and the Second Circuit found a violation of the defendant's public trial right.

The D.C. Circuit entered the fraud remand fray, sending a criminal copyright case back because of errors in the restitution order.

Exciting stuff.

For those who are obsessive about extraterritorial criminal law (a growing number of folks, these days), the Eleventh Circuit vacated a few convictions for people convicted of violating U.S. drug trafficking laws for things they did in Panamanian waters.

To the victories!

1. United States v. Bellaizac-Hurtado, Eleventh Circuit: As a result of observations by the United States Coast Guard in the territorial waters of Panama, four people were convicted in the United States of engaging in a drug trafficking conspiracy. Panama consented to prosecution in the United States. Because drug trafficking is not "an offense against the Law of Nations" under the Maritime Drug Law Enforcement Act, Congress exceeded its power under the Act's Offenses Clause when it proscribed the conduct in the territorial waters of Panama. Consequently, the Act is unconstitutional as applied to these four individuals and, as a result, the convictions were vacated.

2. United States v. Marquez, First Circuit: In crack cocaine distribution case, appellant was sentenced to 121 months in prison based on the district court's finding that he had acquired for distribution 304 grams of crack in two 152-gram allotments. Although it was not error to attribute the first 152-gram allotment to appellant, the court committed clear error in attributing the other 152-gram acquisition to appellant because there was no evidence to support the finding that the additional quantity was actually 152 grams. This secondary finding had a "dramatic leveraging effect," as it triggered a 120-month mandatory minimum. Consequently, appellant's sentence was vacated and the case remanded for resentencing.

3. United States v. Lacy, Henry, Second Circuit: In mortgage fraud case, the district court erred in applying a two-level enhancement to appellants' sentences for an offense "committed through mass-marketing" under Guideline § 2B1.1(b)(2)(A)(ii) without making sufficient findings to show that the targets of the mass-marketing scheme were also in some way victims of the scheme. Consequently, remand for additional findings was required. The court also failed to credit any of the value of the collateral in formulating its restitution orders, warranting remand for recalculation of the restitution amount.

4. United States v. Gyanbaah, et al., Second Circuit: Appellant was convicted of five offenses arising out of his participation in a fraudulent tax return scheme. Because there was insufficient evidence to convict him of bank fraud and aggravated identity theft related to the bank fraud, his convictions on these counts were vacated and the case remanded for resentencing.

5. United States v. Gupta, Second Circuit: In immigration fraud cause, appellant's sixth amendment right to a public trial was violated when the district court intentionally excluded the public from the courtroom during the entirety of jury selection without first considering the following factors: (1) the party seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trial court must make findings adequate to support the closure. Consequently, appellant's conviction was vacated.

6. United States v. Fair, DC Circuit: In copyright infringement and mail fraud case, the district court erred in entering a restitution order against appellant because the government failed to meet its burden under the Mandatory Victim Restitution Act to present evidence from which the court could determine the victim's actual loss. Consequently, the restitution order was vacated.

7. United States v. Woodard, Tenth Circuit: Appellant's conviction for possession of more than 100 kilograms of marijuana with intent to distribute was reversed because there was a reasonable probability that the jury would have reached a different result had appellant been allowed to cross-examine a witness about a prior judicial determination that the witness was not credible.

Pretty much every federal district judge in the country knows by now that the sentencing guidelines are not mandatory, the guidelines can't be presumed to be accurate, and that federal district court judges have authority to impose a sentence above, below, or within the sentencing guidelines, applying the factors set out in 18 U.S.C. § 3553(a).

And so just about every federal district judge knows that if he or she says she's going to give a guidelines sentence, he or she has to also say it's the sentence that they'd give under § 3553(a).

It's odd, but in federal court it's very important that a judge knows what power he has, which is exemplified in the D.C. Circuit's opinion in United States v. Terrell. If a district judge is going to give a guidelines sentence, he or she has to be clear about whether a lower sentence is even possible.

Mr. Terrell had a crack (conviction) problem. He pled guilty to dealing a bit of crack and went to sentencing.

At sentencing, he asked the judge to give him less time than the sentencing guidelines called for. The guidelines in his case called for a sentence of 210 months on the low side (ok, perhaps it was more than "a bit" of crack).

The judge, though, told Mr. Terrell that he didn't think he could help him out. As the D.C. Circuit summarized it,

the court stated that it would sentence Terrell below the applicable Guidelines range only if it found "compelling reasons" to do so. See, e.g., Tr. 6/27/06, at 4:6-14 ("There would have to be compelling reasons for the Court not [to] impose an advisory guideline sentence."); id. at 7:8, 7:18-20 ("Now, I'm not so sure compelling reasons exist here. . . . [I]f you think there's a basis for the Court to impose something other than an advisory guideline sentence it's going to have to be for compelling reasons."); see also Tr. 8/4/05, at 4:16-18 ("In all likelihood, I'm going to follow the guidelines even though they're advisory. In all likelihood I'm going to do that."). The court explained that it had found "compelling reasons" to deviate from the Guidelines in only two prior sentencings. Tr. 6/27/06, at 4:6-14.

If there's one thing a federal appellate court doesn't like, it's being ignored. Just three months before Mr. Terrell's hearing, the D.C. Circuit had decided, in United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007), that a district court can't decide that the sentencing guidelines are presumptively reasonable - put another way, it can't say that it'll only go below the sentencing guidelines if it has compelling reasons.

For the district court to keep on applying a "compelling reasons" standard was, perhaps, a bit of a snub to the august appellate court.

As the court of appeals put it,

Even after we issued our decision in Pickett, the court indicated that it was continuing to apply its "compelling reasons" approach. See Tr. 3/27/07, at 10:2-3 ("The question becomes why shouldn't the Court impose a [within-Guidelines] sentence of 210 months? . . . I just can't think of any compelling reasons why I should not impose a sentence of 210 months.").

Because the district court was wrong about when it could go below the sentencing guidelines - employing a "compelling reasons" approach after the D.C. Circuit had already said that wasn't the law - the D.C. Circuit remanded because, "the [district] court took too narrow a view of its authority to deviate from the Guidelines"

Mr. Terrell will be resentenced.

The D.C. Circuit, normally an infrequent presence on this blog, has two cases in one week!

One involves Osama bin Laden's driver and his happy adventures with retroactivity. The was a remand for a judge who thought that a below guidelines sentence is only appropriate when there are "compelling reasons" to go below the guidelines range.

There's also go action in a Sixth Circuit meth case involving the Fourth Amendment, and a crime of violence case out of the Tenth Circuit.

Fire up those 28(j) templates - here are this week's Short Wins:

1. Consolidated Sixth Circuit Cases: United States v. Beals; United States v. Miller; United States v. Ambrose: In case arising out of an alleged methamphetamine manufacturing and distribution conspiracy, Pamela Miller, Leslie Beals, and Bobby Ambrose challenged their convictions for drug-related offenses. The Court dismissed Miller's appeal and affirmed Beals' convictions. The Court affirmed Mr. Ambrose's convictions but remanded for the district court to make findings on "unresolved matters" related to the execution of the search warrant, the fruits of which were presented at trial. The Court further ruled that, if the district court determines on remand that the officers exceeded the warrant's scope, it should determine whether blanket suppression of all of the evidence presented against Mr. Ambrose is warranted and, if so, how this affects his convictions and sentences.

2. United States v. Hamdan, DC Circuit: Salim Hamdan, an al Queda member who worked for Osama bin Laden, was convicted by a military commission for "material support for terrorism," a war crime specified by the Military Commissions Act of 2006, based on actions he took from 1996 to 2001 - before the enactment of the Military Commissions Act. Because the D.C. Circuit read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under the relevant statute that was on the books at the time of his conduct (10 U.S.C. § 821), the Court reversed the military commissions court's judgment and directed that Hamdan's conviction be vacated.

3. United States v. Joe, Tenth Circuit: In aggravated sexual abuse case, the district court erred when it enhanced the appellants' offense levels for physical restraint of the victim and use of force against the victim because it is impossible to commit aggravated sexual abuse without also applying force that constitutes physical restraint of the victim. Because this error was not harmless, the Tenth Circuit remanded the case to the district court for resentencing.

4. United States v. Terrell, D.C. Circuit: In possession with intent to distribute crack case, the district court committed plain error in sentencing appellant because it took too narrow a view of its authority to deviate from the Sentencing Guidelines. In particular, the Court stated that it would sentence appellant below the Guidelines only if it found "compelling reasons" to do so. This approach was forbidden before appellant's sentencing. Because this error affected appellant's substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings, resentencing was warranted.

5. United States v. Duran, Tenth Circuit: The district court erred in applying a crime of violence sentencing enhancement when it sentenced appellant pursuant to his guilty plea to possession of a firearm by a convicted felon. Because appellant's prior conviction for aggravated assault can be committed with a mens rea no higher than recklessness under Texas law, the crime is not a crime of violence under U.S.S.G. § 4B1.2(a). As a result, the enhancement did not apply, and remand for resentencing was warranted.

6. United States v. Quinn, Seventh Circuit: In child pornography case, the district court erred in failing to explain its decision to sentence appellant to a lifetime of supervised release. The term of supervised release was vacated, and the case remanded for resentencing with instructions for the court to consider (1) how appellant's arguments that he has a lower-than-normal risk of recidivism affect the appropriate length of supervised release, (2) the interaction between the length and terms of supervised release, and (3) the possibility of setting sunset dates for some of the more onerous terms of supervised release.

The war on terror[ism] is a massive new problem for society. And, of course, when there's a massive new problem for society, that ends up being a massive new problem for lawyers.

Despite the debate about whether or not to close the detention facility in Guantanamo Bay - both between Obama when he was a candidate and as President, and in society at large - and the discussion about whether to have civilian or military trials for alleged terrorism suspects, a very real part of the war on terror[ism] has been playing out in our federal courts.

The D.C. Circuit's opinion from last week in United States v. Mohammed is a nice example.

Don't Trust Just Anyone To Help With Your Missile-Buying

Mr. Mohammed lived in the village of Geratak in Afghanistan. If a man named Jaweed is to be believed, one day, Jaweed walked into Geratak and asked to speak with Mr. Mohammed.

Upon meeting Jaweed, Mr. Mohammed then invited Jaweed into his planning to attack a NATO airbase in Afghanistan. Specifically, Jaweed says that Mr. Mohammed asked him to get some missiles to use to attack the airbase.

As any federal criminal defense lawyer - or frequent viewer of The Wire - would suspect, Jaweed then went to law enforcement. Just like on The Wire, he went to the DEA, who were working in Afghanistan.

The DEA agents did what DEA agents do - they wired up Jaweed. Jaweed then recorded calls with Mr. Mohammed where he made some boasts about attacking the airfield.

Initially, the DEA decided they would give the missiles to Jaweed, and then arrest Mr. Mohammed as soon as Jaweed handed over the missiles. At some point, someone in the federal law enforcement community determined that handing missiles to a person in Afghanistan who has bragged about wanting to harm a NATO airbase - using missiles - is not a good idea.

A New Plan Is Hatched

If you only have a hammer, you only see nails. The DEA decided to arrest Mr. Mohammed for narcotics trafficking, instead of planning to attack the airbase.

Jaweed was instructed to talk to Mr. Mohammed about a friend of his looking for opium. Mr. Mohammed said he knew a guy who could get opium, and they talked about what Mr. Mohammed's commission for getting the two friends together would be. At one point, Mr. Mohammed said he'd use his commission to buy a car to transport the missiles to attack the airbase.

If there's anything the DEA knows how to do, it's a controlled buy. The opium deal went through and the agents got some good video of Mr. Mohammed handling opium.

The DEA did another deal - this time for heroin. During this deal, Jaweed told Mr. Mohammed that his friend was planning to send the heroin and opium to the U.S. Mr. Mohammed expressed pleasure at this idea - saying that their common goal was to "eliminate the infidels either by opium or by shooting".

Mr. Mohammed Is Arrested

The DEA arrested him in Afghanistan and drove him to a DEA base. He was given Miranda warnings and made a statement.

The D.C. Circuit noted that "[a]t no time [during the interview] did Mohammed ask for an attorney"

He was transferred to the United States and put on trial in the United States District Court for the District of Columbia.

The Trial

Mr. Mohammed moved to suppress his statement, but the district court said that he was Mirandized and had the consequences of giving a statement explained to him, so no dice.

The trial lasted four days. Jaweed testified for two of those days. Mr. Mohammed's lawyer called no witnesses and offered no evidence. He was convicted of narcoterrorism and given two life sentences.

Ineffective Assistance of Counsel

The D.C. Circuit is a good court to practice in for a number of reasons - one of which is that you can raise an ineffective assistance of counsel claim in your direct appeal.

In many other circuits around the country, if your lawyer messed up, and that affected what happened to you, you can't complain about that in the appeal - you have to wait until after the appeal and file a petition under 28 U.S.C. § 2255.

But not so in the District of Columbia. Here, if you can show that your lawyer was constitutionally ineffective from the record before the court on appeal, the D.C. Circuit will consider your claim.

It almost makes up for not being able to vote for a Senator.

Here, Mr. Mohammed said that he had a number of witnesses in Afghanistan that he wanted his lawyer to interview.

These witnesses, he said, could have shown that Jaweed was a liar who hated Mr. Mohammed and was out to get him. Since Jaweed was the star witness, if Mr. Mohammed could have found and brought over witnesses to say Jaweed was biased or a liar, it could have gone a long way in his trial.

As the D.C. Circuit said, Mr. Mohammed's lawyer "owed him a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." If he didn't try to contact witnesses - even ones in a remote village in Afghanistan - he may not have given Mr. Mohammed the legal representation the Constitution guarantees him.

Sadly, the rest of the details of the ineffective assistance are under seal.

And so, the case was remanded to the district court on the ineffective assistance claim.

It's very fashionable these days for United States Attorney's Offices to bring large indictments charging many people with involvement in a drug conspiracy.

They almost always get convictions.

Yet in the case of United States v. Gaskins, the D.C. Circuit - in an opinion written by a former federal prosecutor - ruled that the United States Attorney's Office indicted, and a jury convicted, a man for being a part of a drug conspiracy when no reasonable juror could have found that he was involved.

The government's case was pretty standard for a large drug conspiracy. They indicted 21 people, including Mr. Gaskins. The government had wiretaps. The government executed search warrants.

After the indictment, lots of people flipped and testified for the government. Many of them were working down from a mandatory life charge.

Again, in a drug case, this is pretty much par for the course.

Yet none of this evidence tied poor Mr. Gaskins to the conspiracy he was indicted for belonging to.

Here's how the D.C. Circuit described the government's best evidence based on a cooperator:

Briggs . . . testified that he was motivated to get his pending criminal cases resolved and to get out of jail. In January 2004, he entered into a plea agreement pursuant to which he was released to help the government obtain information regarding several suspects, including Gaskins. As a condition of release, he had to report to the FBI on a daily basis. Briggs testified that he had multiple contacts and conversations with Gaskins after he was released. Although he said that Gaskins helped him fill out job and housing applications, Briggs said that none of their interactions involved the subject of narcotics.

That Gaskins - helping a man get housing and a job. Still, not exactly Stringer Bell.

The government executed a search warrant at Mr. Gaskins' mother's house. As the D.C. Circuit said:

In addition, the government searched the apartment in southeast Washington where Gaskins lived with his mother. That search yielded neither drugs, nor records, nor any other evidence linking Gaskins to the conspiracy. Nor did it (or any other search) yield evidence that Gaskins had expensive jewelry, clothes, cars, or homes -- as searches did uncover with respect to other conspirators. The government's only evidence was that Gaskins lived in his mother's modest apartment.

And of the wiretaps:

FBI Special Agent John Bevington testified that the government conducted four months of wiretaps, from February 17 to June 26, 2004, during which it intercepted more than 14,000 calls. Recordings of many calls were played to the jury. Bevington and Detective Hall testified that two signature traits of a narcotics conspiracy are using coded language and asking conspirators to go to a land line, both of which could be discerned in several of the recorded calls. None of the calls by other alleged conspirators mentioned drugs or drug transactions in connection with Gaskins, whether in clear or in coded language. No call in which Gaskins participated mentioned drugs or drug transactions at all, in code or otherwise, and he was never asked to go to a land line.

See - that land line thing from Pulp Fiction is real.

The jury, nonetheless found him guilty.

Actually, to be more specific, the jury eventually found Mr. Gaskins guilty. The narcotics conspiracy he was alleged to be involved in had four separate objectives. The jury first found that he was guilty of the conspiracy, but that the government hadn't proven that he was seeking any of the objectives of the conspiracy. The district court, rightly puzzled by this, sent the jury back to resolve the conflict (over Mr. Gaskins' objection). The jury, then, returned a guilty verdict, determining that Mr. Gaskins was involved in the drug conspiracy.

Because the D.C. Circuit resolved Mr. Gaskins case based on the sufficiency of the evidence, and not based on the trial court's handling of the odd verdict form, the court of appeals did not resolve the question of what the court should have done with the odd jury determination.

Mr. Gaskins was ultimately sentenced to 22 years. The D.C. Circuit ordered him released and the judgment of conviction vacated after oral argument.

Think about that. Your government sought 22 years for a guy who wasn't on a wire, who no snitch said was involved, and who - when they searched his house - had no evidence of drugs there.

Jesus Rodriguez took a long time coming to the truth. But in his appeal in United States v. Rodriguez, the D.C. Circuit held that, sometimes, coming to the truth late is coming soon enough.

Mr. Rodriguez was indicted for cocaine distribution. He faced a five-year mandatory minimum.

There Are Two Ways To Get Under A Mandatory Minimum Sentence

There are two ways under a mandatory minimum. One is to cooperate with the government and receive a government motion for a sentence under the minimum under 18 U.S.C. § 3553(e). To do that, means to cooperate with the government in its efforts to put others in prison.

The other option is to meet the requirements for the "safety valve" under section 3553(f). The biggest one - the one that is most often the problem - is the requirement that a person truthfully talk about their role in the offense and disclose to the government everything they know about their own conduct.

As the statute says on this requirement,

not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

If a person qualifies for safety valve in a drug case, the person also receives a two-level reduction in her offense level under the sentencing guidelines.

Mr. Rodriguez Walks Half Way To The Truth

Mr. Rodriguez wanted to take advantage of the safety valve statute. He pled guilty and met with agents for the government and talked about his role in the offense. He talked about his drug dealing.

He told them that the guy who drove him to a drug deal was his boss, who was just giving him a ride.

The government didn't believe him about that.

The Safety Valve Hearing

The case went to a hearing on whether Mr. Rodriguez had been honest in his statements to the government. Mr. Rodriguez testified at the hearing that the man who drove him to the drug deal didn't know it was a drug deal.

Two police officers testified that the man who drove Mr. Rodriguez to the drug deal paced behind the car while the deal was happening, and brought $4,000 in cash and a gun to the deal. They also said that the guy Mr. Rodriguez was selling drugs to was told, by Mr. Rodriguez, that his supplier would drive him to the deal.

The district court concluded that Mr. Rodriguez was lying. It continued the sentencing hearing to figure out what to do with that.

Bad Things Happen When You Lie In Federal Court

The government asked for a number of increases in Mr. Rodriguez's offense level because of his false testimony. He was given a two-level increase for obstructing justice. He lost his acceptance of responsibility credit - the reduction in his guidelines based on pleading guilty.

These changes moved his guidelines from 46-57 months to 78-97 months.

Mr. Rodriguez then decided to change his approach. He met with the government again. This time, he told them what everyone agreed was the truth.

He apologized for his prior statement, and said he was sorry he lied.

The Sentencing Hearing

At sentencing, Mr. Rodriguez apologized to the district court for lying.

The district judge sentenced him to 72 months - his guidelines were increased because of his obstruction, and he lost acceptance of responsibility.

What About Safety Valve?

On appeal, Mr. Rodriguez had new counsel. His new lawyers argued that his trial counsel should have asked for a safety valve reduction under the sentencing guidelines, and that he was constitutionally ineffective for not doing so.[FN1]

The D.C. Circuit agreed.

The court of appeals noted that the government conceded at sentencing that Mr. Rodriguez had, eventually, belatedly, been fully truthful with them by the time the sentencing hearing happened.

The court of appeals held that

The fact that Rodriguez waited until the last minute to provide the information or that he was tardy in doing so does not preclude him from obtaining safety-valve relief. The provision does not distinguish between defendants who provide the authorities only with truthful information and those who provide false information before finally telling the truth. (internal quotations omitted)

Moreover,

Familiarity with the Guidelines is a necessity for counsel who seek to give effective representation. When a lawyer fails to raise an applicable provision of the Guidelines, he fails to provide effective assistance. (internal quotations omitted)

Because Mr. Rodriguez was entitled to a two-level reduction for safety valve the case was remanded for resentencing.

[FN1] - Readers from outside of the D.C. area may be surprised to learn that the D.C. Circuit allows a person to raise an ineffective assistance claim on direct appeal if the record establishes the ineffective assistance sufficiently.

See also:

• Safety Valve, Government Power, and Marijuana in the Woods of Arkansas


• The Ninth Circuit on Mandatory Minimums, Safety Valve, and Timetravel

If you want to read about a large number of issues in federal criminal law in one place, you should check out United States v. Moore. Beach reading it isn't.

From whether a person on trial can be forced to wear a stun belt during trial, to a discussion of race-based strikes to members of the jury, to testimony about religious conversions and ineffective assistance of counsel, this 128-page beast of an opinion has everything.

There's even an 11 page concurring opinion on race-based jury strikes!

I am not going to write about all of it.

The court reversed a number of counts on confrontation clause grounds. Interestingly, between the date of the trial in 2005 and when the appeal was decided in 2011, the law of the confrontation clause changed dramatically.

Some background - under the Sixth Amendment, a person accused of a crime has the right to confront his or her accusers. Normally, that means a person - or, really, the person's lawyer - gets to cross-examine anyone who is offering evidence for the government.

This gets tricky when the government tries to introduce forensic evidence. Actually, strike that - it isn't "tricky", it's cumbersome.

As any viewer of ads for TV shows on CBS knows, the government keeps crime labs in their police departments. And in those labs, people analyze evidence to present at trial. The question is whether the person who does the tests, and actually knows what happened when the evidence was tested, has to testify, or if someone from the lab can just say what generally happens when evidence is tested (hint: someone is found guilty).

The Supreme Court has very recently held that yes, the Constitution applies to people in crime labs too - even if they look really good on CSI.

Between when this case was tried and when it was decided on appeal, the constitutional ground moved, and, now, what happened at trial wasn't ok.

So, those counts were remanded.

For everything else in the opinion, please check it out here.

Related articles

• D.C. Circuit: Prosecutors' Comments Not Enough For New Trial (legaltimes.typepad.com)
• US Supremes Expand Crawford/Melendez-Diaz (ejdirga.wordpress.com)
• The Confrontation Blog
• Cross-examination for everyone!
• More on Melendez-Diaz
• Why Melendez-Diaz is good policy

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Appellate review in a federal criminal appeal is a funny thing. Sometimes, saying the wrong thing is the easiest way to get reversed. Sometimes it's a question of not saying enough.

The D.C. Circuit remanded a bail reform act decision in United States v. Nwokoro.

Mr. Nwokoro is a U.S. citizen who is from Nigeria. He apparently fell on hard times in Washington D.C. and was living in a homeless shelter. Then he was charged by complaint with a crime. Then he was indicted.

He was arrested and brought to a magistrate judge. The court ordered that he can't be released before trial because he might run under the Bail Reform Act. The court explained that:

[Mr. Nwokoro] has moved to Africa. He has moved hundreds - - well based on the representations I have heard from the Government and the documents I have seen here, I have wire transfers totaling over $280,000 and an Agent testified to . . . a million dollars in receipts in a two-year period [referring to appellant's tax preparation services' gross receipts in 2005 through 2007] .

 

The Court finds that the Defendant is indeed a substantial flight risk. The Court finds . . . that there is no combination of conditions that could possibly protect this Court's interest in having him appear here before this Court. . . . The Court finds that he is a flight risk and that he should be detained pending the outcome of this case.

The problem is that the court isn't supposed to just find someone is a flight risk, the court is also supposed to figure out if there are any conditions of release that can make sure they don't fly. And the court should consider any factors that suggest that the person is not a flight risk.

As the D.C. Circuit noted, there are a lot of reasons to think the guy isn't going to run:

When given the opportunity to flee the area, appellant has not. He does not presently have assets under his control in the United States (his bank account in the United States has been frozen), and he does not have possession of his U.S. or Nigerian passports (which are in government custody) with which to leave this country, much less to enter Nigeria. He has never failed to appear in court when notified, and he has never failed to check in with the Pretrial Services Agency as he was previously required to do on a weekly basis. Indeed, after the magistrate judge dismissed the initial criminal complaint against him, appellant made no apparent attempt to flee prior to his arrest on a new indictment five days later. Appellant was released on his own recognizance two days later and again made no apparent attempt to flee between then and the detention hearing four weeks later. Appellant is not charged with a violent offense, and he has no prior criminal record.

Why couldn't he have been released to a halfway house? Or with a condition that he check in with pretrial services every day? The district court was silent on those questions. Because of that, the D.C. Circuit sent the case back, for a quick hearing on these issues.

One thing this case raises is just how slow even a fast appeal can take. According to the record cites in the opinion, Mr. Nwokoro's hearing was on May 10. The opinion came out on August 3. Which means the man sat in jail for almost three months based on a flawed hearing.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.